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Friday, January 11, 2002

Rumsfeld: "unlawful combatants"

Today a new phrase will be invented: "unlawful combatants". This new phrase does not appear anywhere in the Geneva Conventions.

At a news briefing, Secretary of Defence Donald Rumsfeld declares that "as I understand it, technically unlawful combatants do not have any rights under the Geneva Convention."

In light of the memo created two days ago, one assumes that Rumsfeld's erroneous statement is his attempt to summarise the legal opinion given to him by Yoo-Delahunty. However, as hair-splitting is the flavour of the week, we will briefly explore whether or not unlawful combatants have any rights under the Geneva Conventions.

One may refer to Article 75 "Fundamental guarantees" of the 1977 Additional Protocol to the Geneva Conventions (I) (which applies to "all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them" -- see Article 2), to see where the Secretary of Defence is in error.

Article 75 states that "The following acts are and shall remain prohibited at any time and in any place whatsoever, whether committed by civilian or by military agents". They include

(a) violence to the life, health, or physical or mental well-being of persons, in particular:
(ii) torture of all kinds, whether physical or mental;
(iv) mutilation;
Other rights for people detained during conflict include:
  • anyone charged with an offence is presumed innocent until proved guilty according to law
  • anyone charged with an offence shall have the right to examine, or have examined, the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him
  • no one shall be compelled to testify against himself or to confess guilt
  • a convicted person shall be advised on conviction of his judicial and other remedies and of the time-limits within which they may be exercised
  • Women whose liberty has been restricted for reasons related to the armed conflict shall be held in quarters separated from men's quarters. They shall be under the immediate supervision of women.


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